ALZAARIR v. Attorney General of US
639 F.3d 86
| 3rd Cir. | 2011Background
- Alzaarir, a Palestinian citizen born in the West Bank, entered the U.S. in 2001 as a visitor and overstayed.
- In 2003 an IJ denied asylum, withholding, and CAT relief, and the BIA affirmed in 2004, giving 30 days to depart voluntarily.
- In 2004–2005 Alzaarir married a U.S. citizen and filed I-130, I-485, and I-765; he learned of the BIA decision via the automated system and attended a March 31, 2005 interview related to the marriage petition.
- In May 2005 a motion to reopen was denied for lack of prima facie eligibility and because he had not filed an I-485 or departed voluntarily by January 26, 2005; he proceeded pro se in reopening proceedings.
- In 2007–2009 DHS declined to join a joint motion to reopen; Alzaarir later filed an August 2009 second motion to reopen alleging ineffective assistance of prior counsel.
- The BIA denied the second motion as time- and number-barred, finding no diligent pursuit or basis for equitable tolling, and the Third Circuit denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly denied the motion to reopen as time- and number-barred | Alzaarir argues tolling based on ineffective assistance should render timely the second motion. | Gonzales argues late filing is barred by statute and regulations; no adequate tolling shown. | BIA did not abuse discretion; filing was untimely and un-tolled. |
| Whether equitable tolling applies due to alleged ineffective assistance | Alzaarir contends delayed filing was caused by ineffective assistance and government representations. | Gonzales contends no proof of conditional promise or reliance-based tolling supported by record. | No equitable tolling; record insufficient to show diligence or reliance to warrant tolling. |
| Whether DHS representations about joint reopening could justify tolling | Alzaarir claims DHS assurances to pursue a joint motion create tolling grounds. | Gonzales asserts no firm conditional agreement was proven; statements did not warrant tolling. | No tolling; evidence failed to show a conditional promise or reached agreement. |
Key Cases Cited
- Borges v. Gonzales, 402 F.3d 398 (3d Cir.2005) (equitable tolling and timeliness considerations in motions to reopen)
- Luntungan v. Attorney Gen. of the United States, 449 F.3d 551 (3d Cir.2006) (equitable tolling and diligence requirements)
- Mahmood v. Gonzales, 427 F.3d 248 (3d Cir.2005) (ineffective assistance as basis for tolling with diligence)
- Rashid v. Mukasey, 533 F.3d 127 (2d Cir.2008) (diligence period spans pre- and post-discovery of ineffectiveness)
- Valeriano v. Gonzales, 474 F.3d 669 (9th Cir.2007) (tolling may apply when government misleads about action to take)
- Socop-Gonzalez v. INS (en banc), 272 F.3d 1176 (9th Cir.2001) (government misdirection tolling considerations)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir.2004) (highly deferential review of BIA discretionary decisions)